The Power of Perspectives

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The Competition Act permits private parties to apply for leave to commence a private application under the Act’s refusal to deal, exclusive dealing, tied selling, and price maintenance provisions. But these law suits are not for the faint of heart. The Competition Tribunal has a gatekeeper role that it takes very seriously, subjecting evidence at the leave stage to intense scrutiny. Of the few cases where the Tribunal has granted leave, only two have proceeded to a full hearing. Both of those private applications were ultimately dismissed.

A recent decision from the Tribunal highlights the uphill battle faced by would-be private applicants.

Justice Minister Jody Wilson-Raybould filled 24 judicial vacancies and announced some changes to the judicial appointment process with a view to improving transparency and accountability. Changes have been made to the Judicial Advisory Committees responsible for assessing the qualifications for applicants.

From now on, each committee will consist of seven members representing the bench, the bar and the general public, four of whom are nominated by entities in the province or territory in question.

a nominee of the provincial or territorial law society;

a nominee of the provincial or territorial branch of the Canadian Bar Association;

a judge nominated by the Chief Justice of the province or by the senior judge of the territory;

a nominee of the provincial Attorney General or territorial Minister of Justice; and

three nominees of the Government representing the general public.

There will no longer be a law-enforcement member sitting on the committees – a change the previous Conservative government had introduced to the recommendation panels when they were in power.

It was a relief to learn that Prime Minister Justin Trudeau chose someone from Atlantic Canada to fill the vacant spot on the Supreme Court. As I have argued, it would have been constitutionally questionable – and politically problematic – for him to do otherwise. Assuming all goes smoothly, Justice Malcolm Rowe will become Newfoundland and Labrador’s first Supreme Court judge within the next few weeks.

This milestone is worth applauding. So is the preservation of regional representation on the Supreme Court. But – and there’s always a ‘but’ with judicial appointments – what about diversity?

Because of that nagging question, there’s something unsettled about this appointment. Justice Rowe, it must be stated, is yet “another white male,” when the Supreme Court already has four of them. #SCCsowhite is a hashtag for a reason.

Would I have liked to see a woman nominated, to give the Court a majority of women judges? Of course. I would have been even more thrilled if the PM had chosen the court’s first indigenous jurist, or the first SCC judge of colour, or the first openly queer Supreme Court justice. (And unlike the Globe and Mail editorial board, I don’t see “demographic variety” and competence as either/or criteria – there were surely qualified candidates who weren’t white men, and their diverse backgrounds would have only enhanced their competence.)

My relief about maintaining regional diversity was, then, mixed with disappointment about not advancing demographic diversity. (With a nod to Leonid Sirota for the helpful “regional diversity” and “demographic diversity” terminology.) To quote my original post on the revamped appointments process: “The essential goal of enhancing diversity on the Supreme Court can work in tandem with the need to preserve regional representation.”

I thought we could have both this time. And we certainly can, with future appointm

In June, Norway became the first developed country to ratify the Paris Agreement. Now environmental groups are suing its government for violating the climate treaty by forging ahead on oil exploration plans in the Barents Sea. The fight centers on Norway’s decision in May 2016 to award 10 new drilling licenses to oil companies. That decision, the plaintiffs say, goes against Article 112 of Norway’s Constitution, which reads:

Every person has the right to an environment that is conducive to health and to a natural environment whose productivity and diversity are maintained. Natural resources shall be managed on the basis of comprehensive long-term considerations which will safeguard this right for future generations as well.

The legal writ, published online, acknowledges that there is little precedent in the Norway for invalidating decisions under Article 112. Nonetheless, here’s how the plaintiffs intend to argue their case:

The presumption principle, which calls for Norwegian law to be interpreted in accordance with international law, makes international law rules and fundamental principles of international law a part of our national legal system. This means that the Climate Convention, the Paris Agreement and international human rights and environmental principles are relevant sources of law when the limitations in Article 112 of the Constitution are to be determined.

In a move that maintains the regional representation on the top court, Justin Trudeau has nominated Justice Malcolm Rowe, a first for Newfoundland & Labrador, to the Supreme Court of Canada to replace retiring Justice Thomas Cromwell.

Justice Rowe comes from the Supreme Court of Newfoundland and Labrador (Court of Appeal). As a practitioner before that, he focused primarily on constitutional matters, foreign relations, and the arbitration of maritime boundaries. He participated in the negotiations that led to the end of the ''turbot war'' and the agreement at the UN for a new convention on high seas fisheries

The appointment leaves the gender balance of the court unchanged at five men to four women. This is the first nomination by the federal government under its new Supreme Court open application process. For further insight into Justice's Rowe's background and ideas, you can read his application questionnaire here:

Fintech companies are telling the Competition Bureau that they want a new regulation regime because it would strengthen trust in their businesses. “Building trust is extremely important in the financial services sector, in particularly in regards to access to banking, which is usually more conservative,” Vicky Eatrides, the deputy commissioner of the Competition Bureau’s Competition Promotion Branch told lawyers at the CBA’s Competition Law fall conference in Ottawa last week.

The federal government has plans to introduce new regulations for the online financial services, or fintech, sector once it hears from business and other stakeholders.

Eatrides said the new rules must balance consumer protection with the federal government’s policy of fostering greater competition and innovation.

Lawyers are invested in access to justice. Many see pro bono work as part of their obligations as a member of the profession. Others build access to justice, such as providing unbundled legal services, into the day to day operations of their law firm.

But, should access to justice be built in as part of a lawyer’s ethical responsibilities and regulated by law societies?

The CBA’s Access to Justice Committee’s report, Equal Justice: Balancing the Scales, suggests that law societies could enhance access to justice in a number of ways. For instance:

The Federation of Law Societies could include an access to justice component in its competency requirements for new lawyer licensing;

Law societies and the Federation of Law Societies could include access to justice in their codes of conduct;

The Federation of Law Societies could require experiential education and/or access to justice in the law school curriculum in order to be called to the bar following law school.

Can we – should we – foster access to justice through lawyer regulation?

Join the CBA’s next Twitterchat, Can Regulation Advance Access to Justice?, as part of Access to Justice Week organized by TAG - The Action Group on Access to Justice. Hosted by Amy Salyzyn (@AmySalyzyn), a professor from the University of Ottawa, she is an expert in legal ethics, who is currently researching innovative ways to foster access to justice. How can law societies help strengthen the link between access to justice and lawyers’ ethical identity?

Tune into #cbaa2j #a2j2016 on Tuesday, October 18 at 12:00 p.m. ET to join the conversation and find out.

It’s a question the Supreme Court will have to consider in December when it hears Google v. Equustek, an appeal of B.C. ruling upholding an extraterritorial injunction ordering Google to remove certain websites from its search engine.

It is one of the noteworthy appeals highlighted by the Chief Justice at the CBA Canadian Legal Conference in August. The case centers around just how far Canadian courts can go in order internet companies, such as Google, to suppress or remove information from the internet.

Both the B.C. Supreme Court and the B.C. Court of Appeal approved an injunction requested by Equustek, a manufacturing company, against Google, which was indexing pages containing Equustek trade secrets and counterfeited versions of their products.

Does it take Parliament’s approval to trigger article 50 to notify Britain’s withdrawal from the Treaty on European Union (TEU)? According to Theresa May’s government, lawmakers need not vote on the matter. But opponents to Brexit have filed a legal challenge arguing that it should have a say in determining the future of Britain’s relationship with the EU. The UK High Court begins hearings this week:

The case could open deep rifts in the consensus over the UK’s unwritten constitution. If the judges concluded that MPs should decide, the majority might not be in favour of leaving.

The government maintains that the decision to depart has been taken by the referendum on 23 June and that its executive powers, under the royal prerogative, are sufficient for David Davis, the Brexit secretary, to give notice on behalf of the cabinet.

At stake is whether the government can skip introducing legislation on formally leaving the EU. Though the British Prime Minister recently took a hard stance on Brexit, a parliamentary vote would allow lawmakers the opportunity to shape the country’s withdrawal from Europe and replace membership in the EU with something more palatable to Remainers.

Last week, the federal government formally ratified the Paris Agreement. The year 2023 will mark the first time international progress for greenhouse gas emission reductions under the agreement will be evaluated and whether nations have met their climate commitments. So what if signatory countries are unable to keep their promises?

While the treaty requires countries to report on their progress, the targets themselves are not legally binding.

Ian Holloway writes that it’s too early to give up on Ontario’s Legal Practice Program, calling it among the most innovative program to train lawyers in the last 70 years, citing Ryerson’s Legal Innovation Zone as one of the main beneficiaries:

What, then, was the problem? Why the recommendation to can the LPP? If, as the PD & C Committee said, the LPP might actually be a better educational product than articling, then why on earth should we want to get rid of it?

The answer, in a word, is brand. PD & C’s report noted that the majority of LPP students “appear to consider the LPP alternative as a second choice or, indeed, no choice at all.” And the fact is they were right. It’s true that today’s law students, if given a choice, would article rather than enrol in the LPP. Of course, they would, for that is the system by which almost every lawyer in Canada was trained. So it’s what seems reflexively “normal” to us. Moreover, the legal employment market is, to a significant degree, built on the idea of a year-long job interview.

Given this, how could anyone imagine that a set of professional biases as deeply ingrained as these could be undone in three years? For Heaven’s sake, that is less time than it takes many lawsuits to get to trial!

The Privacy Act and the Access to Information Act are two pieces of federal legislation whose time has come – to be amended.

The federal Privacy Commissioner sent the government a letter outlining 16 changes that he believes need to be made to the Privacy Act. The CBA’s Privacy and Access Law Section agrees with most of those changes – in fact it has made many of the same recommendations over the past decade or more. And it doubles down by saying the Access to Information Act – which, like the Privacy Act, has not been substantially changed in 34 years – must be amended at the same time. “Both statues have been treated as a package since they were enacted and there are compelling reasons to continue doing so,” the Section says.

In its submission, presented to the Standing Committee on Access to Information, Privacy and Ethics in late September, the Section notes that the review must also address the “supporting infrastructure.”

(Hear more from Gary Dickson, who appeared before the Committee for the CBA.)

“More than 30 years of experience with access and privacy laws in Canada dictate that we cannot achieve a truly robust set of information rights if we focus exclusively on the enabling statute,” the submission says. “The access and privacy infrastructure includes the role and work of the Treasury Board, the role and work of ATIP Coordinators, the Open Government initiative and a host of administrative and procedural matters that directly and indirectly affect individuals asserting their information rights under either or both statutes.”

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